JOINT COMMITTEE ON ADMINISTRATIVE REGULATION REVIEW  March 7, 2000 1:40 p.m.   MEMBERS PRESENT    Senator Robin Taylor, Chairman Representative Jeanette James, Vice-chair Senator Pete Kelly Senate Georgianna Lincoln Representative John Harris   MEMBERS ABSENT    Representative Mary Kapsner   COMMITTEE CALENDAR    Repeal of RS 2477 Rights-of-way Easement Certifications, Easement Regulations   WITNESS REGISTER    Commissioner John Shively Department of Natural Resources 400 Willoughby Ave. Juneau, AK 99801-1724 POSITION STATEMENT: Answered questions regarding DNR's proposed regulations for easements and rights-of way.   Mr. Bob Loeffler, Director Division of Mining and Water Management Department of Natural Resources 3601 C St. Suite 800 Anchorage, AK 99503-5935 POSITION STATEMENT: Answered questions regarding DNR's proposed regulations for easements and rights-of-way. Ms. Nancy Welch Northern Region Office Department of Natural Resources 3700 Airport Way Fairbanks, AK 99709 POSITION STATEMENT: Answered questions regarding DNR's proposed regulations for easements and rights-of-way.      Mr. Bill Cummings Assistant Attorney General Department of Law PO Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Discussed DOTPF's concerns about DNR's proposed regulations.   Ms. Tina Cummings Division of Wildlife Conservation Alaska Department of Fish and Game PO Box 25526 Juneau, AK 99802-5526 POSITION STATEMENT: Discussed ADFG's concerns about DNR's proposed regulations. Mr. Dick Bishop Alaska Outdoor Council P.O. Box 73902 Fairbanks, AK 99707 POSITION STATEMENT: Discussed AOC's concerns about DNR's proposed regulations.   ACTION NARRATIVE    TAPE 00-3, SIDE A  Number 001   CHAIRMAN ROBIN TAYLOR called the Joint Committee on Administrative Regulation Review meeting to order at 1:30 p.m. Present were Vice- Chair James, Representative Harris, Senator Lincoln and Chairman Taylor. The meeting was convened for the purpose of hearing an update by the Department of Natural Resources' staff on the proposed RS 2477 regulations. COMMISSIONER JOHN SHIVELY, Department of Natural Resources (DNR), said the main purpose of the draft regulations is to put into DNR's regulatory scheme two things: recent changes in law and some traditional practices used by DNR to treat the management of easements on RS 2477 lands. DNR did not intend to do anything to limit or eliminate the State's title to RS 2477s. People have looked at DNR's management philosophy and realized that a state right-of-way is a right that the State can manage. He noted DNR's rights-of-way practices have caused quite a stir in the agricultural community because they could cause changes in agricultural practices, for example in the way people fence land, but his basic point is that easements and RS 2477s are state rights. COMMISSIONER SHIVELY indicated that state rights-of-way can be vacated when alternative access exists. The legislature made that process more complicated a few years ago; DNR would be glad to see the legislature revisit that issue. The new regulations are an attempt to reflect the law that was passed two or three years ago. He offered to answer questions. Number 325 VICE-CHAIR JAMES asked if a property owner pays taxes right up to the property line even though the property owner cannot use the 50 foot section line easement. COMMISSIONER SHIVELY answered that people can and actually do use the easement but they use it at a risk. If they don't want to take that risk, they build up to the edge of the easement rather than to the edge of the property. VICE-CHAIR JAMES pointed out that she was a member of both the Fairbanks North Star Borough planning and platting commissions and, in that area, the property was taxed right up to the line even though 50 feet of that property was an easement. The fact is, when people put buildings on the easement, they often had to remove them. COMMISSIONER SHIVELY said if a building is put on an easement, DNR would probably ask the property owner to move it. He agreed the property owner pays taxes right up to the property line even if an easement is on that property. He added that Mike Eastman from Homer had an RS 2477 easement on his land which the public used as a snowmachine trail yet he had to pay property taxes on that easement. CHAIRMAN TAYLOR noted if it is an asset of significant value, a reduction in value caused by the easement can be apportioned. The property owner may be taxed at a different level for valuation purposes for that 50 feet, but the Homer easement does not own fee title to that land, it only owns the right to use it for certain functions. CHAIRMAN TAYLOR asked Commissioner Shively if the language in 11 AAC 51.010 increases DNR's authority over section line easements, and how that language affects the Department of Transportation and Public Facilities' (DOTPF) current regulations related to power line easements. Number 647 COMMISSIONER SHIVELY replied the language does not change the relationship between DNR and DOTPF. If DOTPF is managing the right of-way, its management scheme is used and vice versa. CHAIRMAN TAYLOR asked whether a utility company would go to DNR or DOTPF if it wanted to put a power line on an easement. COMMISSIONER SHIVELY replied, "If we've given the management to DOTPF, it is my understanding that you'd have to go to DOT." MR. BOB LOEFFLER, Director, Division of Mining and Water Management, agreed. CHAIRMAN TAYLOR asked how one would know who is in charge. COMMISSIONER SHIVELY replied the utility company would ask one of the departments. CHAIRMAN TAYLOR asked if the amount charged by each department differs. COMMISSIONER SHIVELY said it is and the price also differs depending on the use. DOTPF has a one-time payment capped at $2500 for utility lines. DNR has a variety of rates for utilities, some are capped for private non-profit utilities. The highest rate, for fiber optics cable, is based on the appraised value of the land. Number 812 CHAIRMAN TAYLOR suggested that discrepancy get cleared up because if the right-of-way is one that DOTPF has historically managed, the cost is capped at $2500 but, if the right-of-way is a newer one that DNR has claimed jurisdiction over, it could cost $500,000 - a significant difference. COMMISSIONER SHIVELY maintained that on things that are high volume and potentially high revenue, such as fiber optics, he thinks DOTPF probably envies DNR. DNR believes it came up with a price that is fair to both the State and the industry and the industry did not object to it. CHAIRMAN TAYLOR indicated a legislative policy may be needed on the question of what the state is going to charge because the policy should be consistent. COMMISSIONER SHIVELY said he does not disagree. He pointed out that discussions about such a policy went on a couple of years ago. At that time, the legislature decided it was not an arena it wanted to work in. CHAIRMAN TAYLOR noted the language in 11 AAC 51.025 also appears to restrict the state's assertions of RS 2477s to surveyed land. He asked Commissioner Shively why DNR is not considering legitimate rights-of-way on unsurveyed land or whether the term "surveyed" includes protracted surveys, as it should. Number 964 COMMISSIONER SHIVELY replied it is not intended to change anything. A major legal question exists regarding whether or not, if the land was not surveyed at the time of Statehood, those section line easements are valid and legal. Some believe they are, others believe they are not. DNR's legal analysis is that there is a strong case for section lines that have not been surveyed. That will have to be litigated someday, but the regulations are not meant to change DNR's legal standing. Number 1038 VICE-CHAIR JAMES said section line easements and RS 2477s are different things. She said she can understand that if the state did not have them surveyed, no one would know where they were. She asked if the unsurveyed RS 2477s can usually be visualized. COMMISSIONER SHIVELY said the RS 2477s can sometimes be followed on the ground, although trails do not always stay put. Translating the visual sighting to a map is more difficult. Some of the older RS 2477s, which DNR believes the state has a legitimate title to, are not used much, if at all, these days. They may be hard to see at all which is why DNR feels strongly that unless an RS 2477 runs across property owned by one land owner, it does not want to record them until they are surveyed. He pointed out that is why DNR has requested the law, passed several years ago, be amended. VICE-CHAIR JAMES indicated that she thought RS 2477s were reserved because they are a way for people to travel from one point to another. She feels it is important to tell a new landowner that an RS 2477 exists on the property even though it has not been recorded or surveyed because that landowner needs to know for planning purposes. COMMISSIONER SHIVELY said DNR would love to do that but identifying and surveying RS 2477s is expensive. He noted that DNR caused quite a commotion last year when it told people that RS 2477s were in a certain area. DNR then looked at what it told the legislature it might be able to do - which was to record on anybody who was on a section where DNR thought an RS 2477 was. People did not like that solution because it meant a number of people who would never have had an encumbrance on their land all of a sudden had one. The encumbrances, in a lot of cases, already encumbers lands in ways that people do not understand, which is another reason to get this problem resolved. VICE-CHAIR JAMES agreed the recording was very traumatic for many of those people. She suggested that follow-up language could have been added to some of the recordings saying the encumbrance might be vacated if alternative access was already achieved, without necessarily adding it into law. She indicated that she wants to provide access but she does not want to interfere with what people have been doing. COMMISSIONER SHIVELY stated the other reason to identify rights-of- way is so that everyone can begin to talk about alternatives and figure out ways to accommodate those people who have actually built on RS 2477s while providing access at the same time. CHAIRMAN TAYLOR asked how that is being done. He noted the regulations say nothing about accommodation. COMMISSIONER SHIVELY replied that in organized governmental areas with planning and zoning authority, they start by going to the local government who will determine whether there is alternative access so that the RS 2477 or the section line could be vacated. They then, by law, have to come to DNR and DOTPF for approval. DNR ran into a situation in Anchorage recently where the municipality agreed on a very short section line vacation. DNR agreed; DOTPF did not and made them do a small alternative access. But government being government, they could not figure out how the party would have that access submitted to the departments. Therefore a process that would have taken 30 days under the old law has now taken six months and the party still does not have a decision. He prefers to see the local governments take care of short vacations. In cases of access to major public lands or navigable public waters, the state should review vacation to make sure that adequate access remains. Number 1436 VICE-CHAIR JAMES noted she was the Chair of the Fairbanks North Star Borough Platting Board and a member of the Planning Commission. She asked if his experience with the Fairbanks North Star Borough has been different from other areas of the state because the Fairbanks Trails Committee went through the entire borough in the late 1970s and early 1980s and identified and mapped trails. At every platting board meeting, the board reviewed the trail maps for submissions for subdivisions. The platting board probably moved some RS 2477s in the process but access was provided, and the platting board also vacated section line easements using that same process. COMMISSIONER SHIVELY said that he has had no experience at this point with issues in Fairbanks; the issues have been primarily in the Mat-Su Valley. VICE-CHAIR JAMES thought Fairbanks dealt with the rights-of-way issue before it became a problem. CHAIRMAN TAYLOR said the question about equal or better alternatives is important. DNR regulations currently allow the municipality to vacate public access rights but there is no equal or better standard. He noted the Legislature would like to at least see equal access. He said he can understand from DOTPF's perspective that if DOTPF has relied upon a right-of-way that it assumed was there, it needs something to get around that. He asked why other agencies are deleted from the determination process regarding navigable and/or public waters. COMMISSIONER SHIVELY said he did not know the answer to that question. He explained that DNR generally talks to other agencies during the process, particularly ADFG, on water issues. He did not think there had ever been a situation where DNR has tried to consider something non-navigable and did not belong to DNR without talking to ADFG. CHAIRMAN TAYLOR said he would hope DNR is asserting navigability in every instance possible. COMMISSIONER SHIVELY replied it is DNR's policy to assert first and let the courts tell DNR it is wrong. CHAIRMAN TAYLOR said regarding the committee's recommendations on the regulations DNR is working on, AS 51.035 appears as though it precludes other agencies and he did not think that is what Commissioner Shively wants to do. He said he does not want to force DNR to give veto power to every other agency on that determination but it might be wise to have something more generic. COMMISSIONER SHIVELY said he doesn't think the regulations are designed to determine what is navigable or public, it only makes reference to navigable or public rights-of-way because DNR needs that access. He noted Chairman Taylor is right in that when DNR looks at a body of water, it makes a determination about that water and whether it should provide access. Number 1683 CHAIRMAN TAYLOR asked Commissioner Shively to respond to question number 5. [Why are other agencies that may potentially be affected by vacations in 11 AAC 51.065(d) not being given a meaningful role in the process?] COMMISSIONER SHIVELY said he doesn't think the intent of the new regulations is to remove the ability of other agencies to participate. He didn't think it has been traditional to include the interagency process within regulations. CHAIRMAN TAYLOR asked Commissioner Shively question number 6. [Is the size determination in proposed 11 AAC 51.035(b) pertaining to navigable waters consistent with other standards and guidelines such as those set down by the Gulkana Case?] COMMISSIONER SHIVELY replied he believes so but offered to double check. He noted public waters do not have to be navigable. CHAIRMAN TAYLOR said he thinks that is important and he believes that the state should adopt the broadest standard possible under legal precedent for what is submerged land under the definition of the '54 Act. He said he can easily see where that could be expanded or contracted based upon the type of definition DNR arrives at and he hopes the definition would have something to do with actual water levels requiring some period of study - much like what the Coastal Geodetic has done to figure out the tides. Those tidal lines control ownership of submerged lands and beach lands and he believes that Alaska could be forfeiting thousands of acres of land and jurisdiction if it does not come up with a well defined legal description that is easy to understand. He recommended that DNR follow the Gulkana case and the Three Rivers case. CHAIRMAN TAYLOR asked Commissioner Shively why DNR has deleted the section allowing for public participation in the nomination process (question 7). COMMISSIONER SHIVELY replied it wasn't deleted. Instead, DNR is getting rid of what was a cumbersome and expensive certification process because DNR cannot afford it. Part of that process provided that people had to pay a $100 fee to nominate so DNR is actually getting rid of that fee. People can still nominate and give information both supporting an RS 2477 or opposing one. Nothing in the regulations is meant to limit the public's right to give DNR information. He noted that most of the information DNR has on RS 2477s has been provided by the public. CHAIRMAN TAYLOR asked what criteria will be used to determine whether a vacation is contrary to the public interest, such as in 11 AAC 51.045. COMMISSIONER SHIVELY replied that is a legal question that he is not prepared to answer. He pointed out one has to look at the situation, at the purpose of access, and whether adequate access exists. VICE-CHAIR JAMES thought that could be determined with public hearings. She noted DNR also needs to be sure that there is no land lock potential. She asked if there is a public hearing process to determine whether vacations are tapped. COMMISSIONER SHIVELY responded that organized governments with planning and zoning authority hold the public hearings. DNR holds public hearings in the unorganized boroughs. He noted that DNR has not vacated easements in an unorganized borough. CHAIRMAN TAYLOR stated he thought DNR will need to and that is part of the problem because people have built in the unorganized borough, next to a natural trail head or on one. The state needs to set up a process so that it is fairly simple within DNR to make those adjustments in the unorganized borough. He expressed concern that the regulations as promulgated do not give DNR that authority and he wants DNR to have that authority. Number 2055 MR. LOEFFLER pointed out that the division has done a number of vacations for section line easements in the unorganized borough and it has a straightforward process that involves public notice. The division has not processed a vacation for any RS 2477s in the unorganized borough because the issue has not come up but the division would follow a similar process. VICE CHAIR JAMES stated Cantwell is in an organized borough with some platting authority, but it is not being asserted. She has told Cantwell residents they need to go to the borough. She asked what responsibility the state has if the borough does not do it. COMMISSIONER SHIVELY stated that if the borough refused, DNR would take the issue on. DNR would rather have the local governments start it because DNR thinks they are better qualified to make recommendations, particularly on local issues but, if they won't do it, DNR will. SENATOR LINCOLN asked Commissioner Shively to respond to item 12. [The letters DNR sent out to landowners regarding RS 2477s near them made people upset because, in part, they did not provide the full story: process to vacate, help needed to locate, legal opinions, etc. Much of the upset during regulation review was due to poor distribution of information.] COMMISSIONER SHIVELY said he thought that was probably a legitimate complaint. He thought DNR misunderstood some people's reaction to what DNR was doing because DNR was just doing business as usual. He thought a lot of people hadn't really thought about what the easements meant and when they saw them in writing, they became excited. In addition, DNR is stymied right now in terms of making decisions because it needs the regulatory changes so it tried to go faster than it should have. As a result, the comment period had to be extended three times. SENATOR LINCOLN thanked Commissioner Shively for his honesty. CHAIRMAN TAYLOR noted his appreciation for the comment period extensions. VICE CHAIR JAMES commented she believes a person would have a case in court if that person paid for a piece of property on which an RS 2477 was never asserted and nothing was noted in the transfer. COMMISSIONER SHIVELY said he is afraid that is not the case. Under that theory, RS 2477s would be worthless against the federal government and against Native corporations. If the right existed, it exists whether or not that land has been transferred. He said he can understand how landowners feel but, from the state's point of view, the right existed and absent a state action that vacates it, it will continue to exist. CHAIRMAN TAYLOR surmised the regulations need to be cleaned up so DNR can go through the vacation process and find alternative routes. He noted if alternative routes are not found, the state may find itself faced with an inverse condemnation situation. CHAIRMAN TAYLOR asked Mr. Loeffler to make the definition of navigable and public waters as strong as possible in the regulations. He also asked that the regulations clarify that a simple process exists to vacate an RS 2477, even in the unorganized borough. MR. LOEFFLER agreed. CHAIRMAN TAYLOR asked a representative from DOTPF to testify. MR. BILL CUMMINGS, Assistant Attorney General, informed committee members that he was attending on behalf of DOTPF. After reviewing DNR's proposed regulations, DOTPF is concerned about who will be granting permits in section line easements. DOTPF's concern is not a matter of control, it is a matter of what will happen if DOTPF tries to build a road later and the line is right in the middle of it. MR. CUMMINGS said DOTPF has been able to work with DNR this year and will identify in DNR's regulations places where there should be a cross reference to DOTPF's regulations on utilities that relate to section line easements. Overall, DOTPF has no problem with DNR's regulations. CHAIRMAN TAYLOR asked if DNR and DOTPF will be working out that problem. MR. LOEFFLER said they will and he expects no problems. CHAIRMAN TAYLOR asked if both departments have thought about presenting a recommendation to the legislature on how the permit process might be unified to create a "one-stop shopping" approach. MR. CUMMINGS said a public policy call was made at the time of Statehood so that public utilities go into highway rights-of-way. For many years, the process was free. Considering the engineering analysis that might be required on an application, it was one of the best bargains in Alaska. The departments are trying to recover costs. In addition, the definition of a "public utility" in the DOTPF statute that allows utility permits is very broad. It includes anyone in the room, the REA Coop, Enstar Natural Gas, the fiber optic companies, etc. He noted because of that, the cost cannot be based on "one size fits all." DOTPF is looking at where it is incurring costs to determine the best places for cost recovery. VICE CHAIR JAMES commented that she sees a great inequity here. Alaska is in its 41st year of Statehood and one unanticipated change is that Alaska has competition in utilities now. She asked Mr. Cummings if the cost of relocating a utility is calculated when DOTPF does road work. MR. CUMMINGS said yes, there is a process that DOTPF goes through, depending on when the utilities were installed. A schedule is set in statute that requires DOTPF to move virtually everything in the right-of-way out of the way of construction. As he understands the process, the public utility receives the depreciated value of moving a pole line and it has to reimburse the state for betterment. That is a difficult line to draw sometimes. VICE CHAIR JAMES pointed out that it is certainly more expensive to move a gas line than to move a telephone line. MR. CUMMINGS agreed and said the engineers talk among themselves a lot and try to avoid head-to-head confrontations because DOTPF knows some of these things are very expensive to move and can't be moved on a whim. VICE CHAIR JAMES commented that different state agencies manage state lands. She asked what the procedure is of a transfer of land from DNR to DOTPF when a line is to be built, for example, and how that would relate if an existing utility easement is on that land. MR. CUMMINGS said he did not understand the question. VICE CHAIR JAMES explained that she is referring to a huge portion of state land through which a road is to be built. She asked what process will be used for DNR to give that land to DOTPF to build the road. MR. LOEFFLER answered that typically, DNR issues DOTPF a right-of- way for a highway or an interagency land management agreement (ILMA) which gives DOTPF the authority to manage that strip of land. It is usually a straightforward process. VICE CHAIR JAMES said she asked the question because of the different state agency ownership of land around Denali National Park. MR. LOEFFLER clarified that DNR tries to coordinate with DOTPF but one would have to go to the state agency that manages the land, whether it be DNR, the Alaska Mental Health Trust, the Borough or another agency. Number 2740 VICE CHAIR JAMES said the Department of Education has land in the rural areas as well. CHAIRMAN TAYLOR added the University of Alaska has land also. He noted his concern is how one gets the process going because he would like to get a new road built south of Juneau. CHAIRMAN TAYLOR asked Mr. Cummings if DOTPF's primary concern regarding DNR's proposed regulations is about vacation and who will be in charge of the permitting process. MR. CUMMINGS said DOTPF is concerned about the permitting process because where DOTPF has a highway on one of these sections, DOTPF should be the permitting authority. If DOTPF intends to put a highway on a section line, it would have a lot to say about what goes in there and DOTPF's current regulations allow it that management authority. CHAIRMAN TAYLOR said he thought DOTPF could be very beneficial to DNR regarding the RS 2477s because they are merely narrower roads. He thought DOTPF should be assessing whether access is equal to or superior because DOTPF has the experience. He was hoping DOTPF could give DNR some assistance in that regard. MR. CUMMINGS said DOTPF could to a point but its hands are full managing the state highway system which is quite different from section line easements and RS 2477 rights-of-way. CHAIRMAN TAYLOR said the lands division of DNR has expertise in other areas. CHAIRMAN TAYLOR asked a representative from ADFG to testify. TAPE 00-3, Side B Number 2400 MS. TINA CUMMINGS, ADFG, informed committee members that ADFG provided extensive comments to DNR copies of which were provided to committee members. She highlighted the key points of those comments as follows. First, many people do not realize that ADFG is so concerned about things like RS 2477s and section line easements because ADFG is responsible for managing public use and enjoyment of fish and wildlife on all lands in Alaska. The public cannot hunt, fish and trap without access. ADFG pays a great deal of attention to all forms of access, be it on navigable waters, section line easements or RS 2477s. DNR was very receptive to ADFG's concerns and to establishing some type of a team to further review ADFG's detailed concerns to find resolutions. The first issue raised in ADFG's letter was that ADFG concurred with the regulations removing the certification process because that process was put into place in the early 1990's. That process was nullified by the adoption of SB 180 so having it remain on the books subjects ADFG to litigation. ADFG has been litigated because it is not following the certification process in the regulations. The proposed regulations, as written, do not include a specific process for individuals and state agencies to submit nominations. ADFG believes that should be in the regulations. DNR is committed to allowing people to nominate and submit information but ADFG wants the process to be laid out in the regulations. Number 2796 VICE CHAIR JAMES said she liked the existing regulations that were nullified by SB 180 and that she did not intend to nullify them when she voted for SB 180. MS. CUMMINGS said the process DNR now uses actually makes it easier to nominate. VICE CHAIR JAMES said she is distressed that the public process is missing in the current plan. MS. CUMMINGS said ADFG concurs and stated that in its comments. MR. MILES CONWAY said that he thinks that what ADFG is saying is that SB 180 took 600 of the routes in the certification process and put them in statute. Implicitly, that was a rejection of the process. He thought the longer they stay on the books, the more likely litigation is. VICE CHAIR JAMES repeated it was never her intent to circumvent the public process when she was involved with SB 180 and, in fact, it was a jump start because it wasn't getting done any other way. She wants to make sure that the public process is intact. CHAIRMAN TAYLOR stated that according to Ms. Cummings, DNR has a new process that is better, but that process needs to have ADFG included in at least an advisory capacity. He asked if that will be part of DNR's regulations. MR. LOEFFLER said he would do that and that DNR has always worked closely with ADFG. He noted that typically DNR does not put interagency interactions in the regulations because it is one more thing to be sued over but he will do so because it is an integral part of the process. CHAIRMAN TAYLOR commented that he does not know that a mandatory veto has to be included because he does not want to see turf wars between the departments. Because the state's resources available for these types of designations are limited and the institutional expertise is comprised of a small working group, he hopes the agencies can cooperate and get the work done. He does not want to set the state up for more lawsuits. MR. LOEFFLER said he shares the same concerns. VICE CHAIR JAMES noted that input from the agencies during the public process is more important to her than what the agencies decided at the office. MR. LOEFFLER commented that DNR does have a public process that it requires for RS 2477s: a comment period; 30 days public notice; a notice published in newspapers with statewide circulation and in newspapers of general circulation; a posting at a post office; notice to the municipality and the Native corporation and a village within 25 miles of the route. He said DNR has mandated a public process for all of the reasons expressed by the committee. Number 2557 CHAIRMAN TAYLOR referred to page 7 of ADFG's comments and asked if easements to and along navigable and public water exist now. MS. CUMMINGS said they do. CHAIRMAN TAYLOR asked how streams are referred to. MS. CUMMINGS said ADFG does reserve those. She asked Nancy Welch to respond to that question. MS. NANCY WELCH, DNR, explained that by statute, DNR is required to reserve an easement to and along public and navigable waters. CHAIRMAN TAYLOR asked how wide the easement is. MS. WELCH replied it is typically a minimum of 50 feet but some have been as wide as 200 feet. CHAIRMAN TAYLOR asked why an easement along a stream would be 200 feet wide. MS. WELCH said the width depends on the topography. CHAIRMAN TAYLOR asked if there is a width set in statute. MR. LOEFFLER explained that a minimum is set but the easement is wider if certain conditions exist. CHAIRMAN TAYLOR asked why some easements are so wide that cabin sites are set back from a stream about 200 feet. MS. WELCH said Chairman Taylor is referring to building set backs employed in DNR land sales. They were requested by ADFG to protect the riparian zone. MS. CUMMINGS commented that easements to and along waterways are very important so that the public can access the waterways. They are in the regulations now. ADFG included a number of technical comments in its letter to DNR about the changes that are being made and how those could affect the access to easements. She noted the biggest concern ADFG has related to the navigability of public waters is in land conveyances, as land moves from state to municipal ownership. ADFG needs to be sure that those waters that are navigable be identified as such before the land is transferred. ADFG likes to work with DNR early in the process, long before the municipal conveyances are noticed to the public so that ADFG can do as much research as possible. Mr. Loeffler is committee to such a working relationship. Number 2368 CHAIRMAN TAYLOR asked Ms. Cummings to discuss 17B easements. MS. CUMMINGS explained that 17B easements are reserved at the time that conveyances move from the federal government to the Native corporations. The only place ADFG addressed 17B easements in its review is related to the width of the easements that are reserved. ADFG suggested that the trails be the same width as the 17B easements so that where easements overlap, they are the same width. CHAIRMAN TAYLOR said he understands that DOTPF asked to sign off on any vacation and that ADFG was concerned that it was not mentioned regarding the approval of vacations. MS. CUMMINGS said ADFG is concerned that in certain places in existing regulations a consultation is required with ADFG, but that requirement has been deleted from the proposed regulations. Where it already exists in regulation, ADFG would like to see it retained. Ms. Cummings clarified that there is one piece of a 17B easement that is also tied to navigable waters and that is why the interagency navigability team was created. She noted that where land is being conveyed from the federal government to the Native corporations, the interagency navigability team has staff that reviews every single conveyance to ensure that navigable waters are identified when possible. Easements cannot be reserved unless they are between, to and from, public lands or waters. Otherwise those public lands and waters could be isolated. Therefore, determining the navigability of waterways for those conveyances is very important to everyone. CHAIRMAN TAYLOR said he would think it would be very important to the recipient of the land also, just as Doyon brought suit on the Three Rivers case. That whole question turned on navigability at the time of Statehood. As a consequence, that one definitional aspect could make the difference of thousands of acres on the amount conveyed from the federal government to the Native corporation. He noted Ms. Cummings is going one step further and asking that the issue of navigability be resolved in conveyances from the state to a municipality and other entities. MS. CUMMINGS repeated that ADFG wants the issue of navigability resolved as early as possible. The easements that are required to be reserved along waterways include public waters - waters that may not necessarily have the finding of navigability. It is helpful for the eventual landowner to know whether or not the submerged lands are claimed by the state under navigability. The easements are reserved regardless. VICE CHAIR JAMES asked it that is an easement or state ownership of land. MS. CUMMINGS said she understood Chairman Taylor's question to be related to the acreage involved in the submerged lands of navigable waters. She explained that when land is conveyed from BLM to the Native corporations, if the waterway is navigable, the submerged land does not count against their entitlement. CHAIRMAN TAYLOR added that it is part of the state's entitlement which is the point he was trying to make when he asked what the specific definition of submerged lands and navigable waters on a stream is, a stream whose depth may fluctuate wildly. He thought that to be a huge issue when it comes to defining those areas that are owned by the state today and may have another competing interest claiming ownership. He did not think it is determined by vegetation alone. MS. CUMMINGS pointed out there is some court history comparing the definitions both in the regulations and statutes of the state. It defines what is meant by ordinary high water, ordinary high water marks, mean high, and mean high tide line. Those are very technical terms with extensive legal backgrounds. She suggested asking the assistant attorney general for the navigability team to provide those definitions to the committee to clear up any confusion. CHAIRMAN TAYLOR said the legislature would appreciate that because until the Three Rivers case came along, no one realized this was a serious dispute with the federal government. The federal government wants to claim that nothing is navigable in Alaska. The legislature did not understand the ramifications of the term "public lands" when public lands is applied to public waters, which turns on that which is navigable. MS. CUMMINGS informed committee members that DNR has a website that contains department order 125 which addresses some of the Chairman's questions, although the litigation items are currently being updated. MS. CUMMINGS concluded by saying ADFG's letter is well detailed and that the flow chart that is attached helps people see where it has concerns or questions that need to be resolved in the final rulemaking. CHAIRMAN TAYLOR said he would not require the consultation requested by ADFG because he does not want to set the state up for a lawsuit. He noted that some agency needs to have primacy and that although he wants DNR to be consulting with ADFG every step of the way, he does not want to require it in regulation because it will be used for turf wars and other objectives. MS. CUMMINGS clarified that ADFG has only asked that the consultation in current regulation continue. ADFG is not asking for consensus. Number 1721 CHAIRMAN TAYLOR asked Dick Bishop to testify. MR. DICK BISHOP, Vice President of the Alaska Outdoor Council (AOC), said the AOC had a lot of questions after reviewing DNR's proposed regulations, some of which were answered today. Regarding the relationship between DNR and ADFG, the AOC thinks the existing regulations should not remain the same. AOC members are the users of the resources and believe the trails should be put into statute. Because access is essential to AOC's interests, AOC believes it is important for ADFG to be involved in the review of access to navigable waters. One interesting comment made earlier was about the importance of public opportunity to formally bring to DNR's attention potential RS 2477s. In the course of AOC's review of RS 2477s, the evidence that individuals provided for a potential RS 2477 was from individuals and may not have been found any other way by DNR. CHAIRMAN TAYLOR asked how the state should approach and resolve the vacation difficulties that have been incurred by the development of properties near, across or along trail heads. He noted that trail heads for some of the more historic trails were popular areas where people built houses one hundred years ago. He questioned how the state should go through the transition process when a trail has been moved yet it must fight to preserve the public's right of access to it. MR. BISHOP said the question has two elements: one is maintaining the public access, the other is maintaining property rights. Both are important. To maintain both will require thought and negotiations. AOC has difficulty with DNR's implementation of the law that was passed and its preference to not record RS 2477s because of the uncertainty of their locations. He believes DNR's responsibility is to find a compromise that will not destroy or diminish the value of the private property but will provide access. CHAIRMAN TAYLOR asked Mr. Bishop if he believes the regulations are flexible enough to accomplish that. Number 1309 MR. BISHOP said he thinks so but does not honestly know. He thought it may go beyond things that are covered in regulations and may require some actual legal agreements that are beyond the terms of the existing regulations. CHAIRMAN TAYLOR said he is hopeful that, out of this process, state personnel would make some proactive efforts to do just that. Number 1180 MR. BISHOP commented that the research that DNR was doing to document RS 2477s has come to a halt by virtue of restricted funds by the Commissioner. The research to verify the existence of RS 2477s is now minimal and only consists of updating information on existing trails. That important function went on for several years and resulted in the several hundred trails that were included in the statute. AOC believes that cutting off that research was not a wise choice because it will be harder to assure that there will be access for outdoor activities. CHAIRMAN TAYLOR noted that issue will have to be taken up in the Finance Committee. CHAIRMAN TAYLOR asked Ms. Welch to update him on the Dana Olson case. MS. WELCH said she has talked with Ron Swanson in the Mat-Su Borough and, to her understanding, an alternate route has been constructed that the snowmachiners use. DNR now has to work through the vacation process to make sure that what is being provided is reasonable and comparable, as required by statute. MR. LOEFFLER commented that because the Chairman has suggested that DNR try to work out flexible solutions, such as in Dana Olson's case, he offered this explanation of the flexibility that DNR can accomplish with its new regulations. DNR will try to be as flexible as it possibly can within the confines of the statute. The statute requires that DNR only vacate an RS 2477 if the alternative is "a reasonably comparable established alternative right-of-way and is sufficient to satisfy all present and reasonably foreseeable uses." In the case where an RS 2477 goes through a person's living room and there is an existing road nearby, the statute requires DNR to look at that road to see if it and the easement surrounding it is sufficient to satisfy all present and reasonably foreseeable uses. That is a reasonably high bar which limits DNR's flexibility. The only other means to vacate is when the vacation is specifically requested by a municipal assembly, in which case DNR has to determine it is a reasonable alternative in the best interests of the state. Those two tests limit what DNR can accomplish toward the direction Chairman Taylor has suggested. CHAIRMAN TAYLOR said that, speaking for himself, he is concerned that the state not give up an RS 2477 opportunity without thinking about the future. That does not mean that before an RS 2477 can be vacated for a new right-of-way, the new right-of-way must be capable of supporting a seven lane highway. All he is looking for is the exercise of common sense. MR. LOEFFLER said DNR does not interpret reasonably foreseeable uses to require a seven land highway; it tries to be flexible. CHAIRMAN TAYLOR asked Mr. Loeffler to keep in mind that as DNR goes to do these things, it may be necessary to take a trail and consider it adequate. In the future, that may be determined to be inadequate but mistakes are inevitable. If that happens the state will take it, condemn it, and build a new road. The state always has that escape valve. CHAIRMAN TAYLOR thanked all participants for their comments. He felt this to be the finest example of interagency cooperation and professionalism he has seen in a long time. He expressed his sincere appreciation. He then adjourned the meeting at 2:58 p.m.